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Sullivan Judge Denies Dismissing Northeast Tennessee Opioid Lawsuit

BRISTOL, Tenn. — Motions made by three pharmaceutical companies and a local doctor to dismiss a lawsuit that seeks to hold them responsible for the region’s opioid crisis were denied Tuesday by Sullivan County Chancery Court Judge E.G. Moody.

The suit, filed by Northeast Tennessee district attorneys general, alleges that a 20-year fraudulent marketing campaign downplayed the effects of opioid prescription drug use and fueled the state’s “opioid epidemic.”

Purdue Pharma and its related companies, Mallinckrodt Pharmaceuticals and Endo Pharmaceuticals, said the suit should be dismissed because the district attorneys lack constitutional standing to bring the suit under their own names on behalf of counties, cities and towns since they haven’t personally suffered injury or harm.

They also maintain that the suit fails to state a claim under Tennessee’s Drug Dealer Liability Act, which is the basis of the suit, because the companies aren’t dealers of illegal drugs, they are manufacturers who make and sell medications approved by the U.S. Food and Drug Administration. The act shouldn’t apply, they said, because the opioids aren’t illegal.

Pamela Moore, of Church Hill, Elizabeth Ann Campbell, of Johnson City, are also defendants in the suit, which claims many of the prescriptions they issued were diverted to the illegal opioid drug market. They have not filed any motions to dismiss the claims against them.

Three lawsuits, including the Northeast Tennessee suit, have been filed by 14 district attorneys general across the state against Purdue and its related companies.

Baby Doe, born in Sullivan County with neonatal abstinence syndrome, is also a plaintiff in the Northeast Tennessee lawsuit and has become its face.

The Northeast Tennessee lawsuit was filed first, in June 2017, by three prosecutors, including Sullivan County District Attorney General Barry Staubus. He said Tuesday he wasn’t surprised by Moody’s ruling.

“I’ve always believed in this lawsuit,” he said. “I’ve always believed that we have the law and the facts on our side; that we will prevail.”

The attorneys for the pharmaceutical companies also argued that some of the claims in the suit are past the statute of limitations. Moody agreed and set the limit at two years before the 2017 suit was filed.

Other arguments made by the defendants’ attorneys:

» Governmental entities have to tie expenditures to specific drug users who have illegally obtained opioids that were produced by the manufacturers. Gerard Stranch, the lead attorney representing the plaintiffs, said Tuesday that thousands of pages have been turned over to the defendants from the district attorneys of cases they have prosecuted as a result of the opioid epidemic;

» Endo Pharmaceutical’s attorney argued that the company has been deterring diversion of its opioid Opana by replacing its original pills with crush-resistant pills;

» The Drug Dealer Liability Act applies to illegal participation in the drug market and doesn’t require companies to prevent or minimize diversion of its prescription drugs or to report drug dealers;

» Allegations in the suit aren’t specific enough;

» Mallinckrodt Pharmaceuticals’ attorney argued that it can’t be proven that the company’s opioids made it into Tennessee’s illegal drug market and into the nine counties included in the Northeast Tennessee lawsuit. The suit claims that between September 2015 and August 2017, the number of Mallinckrodt-produced opioids prescribed in Kingsport, Johnson City and Knoxville exceeded each city’s population.

Stranch also argued that the companies participated in the illegal diversion of opioids by intentionally failing to safeguard against diversion and providing the pills at rates higher than medically necessary.

Dr. Abdelrahman Hassabu Mohamed’s attorney, Elizabeth Hutton, argued that claims against her client should be dismissed, among other reasons, because he is not a drug dealer and that the neurology and pain management facility he owned and operated in Morristown, Tennessee, was not a pill mill, as the lawsuit claims. Hutton also said there is no evidence that the opioids Mohamed prescribed made it into the illegal drug market.

Mohamed is currently serving three years in federal prison on health care fraud convictions. He voluntarily surrendered his medical license earlier this year.

Stranch said he will continue to gather discovery and depositions will begin soon. The next step will be a jury trial.

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